The comment I hear most often during pre-mediation conferences is:
“we agree we don’t want a joint session with opening statements.”
While mediations originated as a joint session model, the mediation of litigated cases is now often dominated by the use of separate caucuses. In the mediation setting, lawyers are overwhelmingly reluctant to speak about their cases in joint session fearing the loss of tactical advantage or starting off the mediation on a bad note by arguing their position.
In August, I attended a meeting of the National Academy of Distinguished Neutrals. One of the presenters was Sheila Heen, of the Harvard Negotiation Project, co-author of “Difficult Conversations,” a New York Times best seller. Her presentation offered insight into why opening statements and joint sessions are difficult, and offered some instruction about how we can do better.
As lawyers trained to work in a courtroom, we are not used to having conversations. We make opening statements, we question, we crossexamine and we argue. In mediation, these skills may well be a detriment to settlement.
Heen’s presentation illuminated why opening statements are so problematic. Our purpose in making such statements is often misguided. We want to show the other side our strength, and in the process we skip the gesture that says we are here to understand and resolve our case. The opening statement, delivered as if we were talking to a jury and not to our bargaining partner, ignores emotions and can threaten your adversary’s identity and sink the mediation before it even begins.
If counsel wishes to make opening statements, here is a summary of an opening statement which invites participation. It was provided with permission of counsel by a fellow member of the International Academy of Mediators. It was delivered by defense counsel in an employment case after a lengthy presentation by the plaintiff's lawyer at a joint session.
The defense counsel looked at the plaintiff and began by thanking the plaintiff and her lawyers for being present. He said he was a big believer in the mediation process and told the plaintiff there were six promises he would make during the mediation: